HEARING EXAMINER'S DECISION AND ORDER ON RESPONDENT'S MOTION TO DISMISS

Case No. 22723

BACKGROUND

On September 1, 1997, the Complainant, Regina Rhyne, filed a complaint of
discrimination with the Madison Equal Opportunities Commission (Commission). The
complaint alleges that the Respondent, the Employment & Training
Association, discriminated against the Complainant on the bases of race, sex and
handicap/disability when it did not hire her in the position of Project
Coordinator for the Local Collaborative Planning Team (LCPT). The LCPT
administers a grant from the federal government through the Wisconsin Department
of Workforce Development (DWD). The purpose of the grant is to coordinate the
job placement efforts of public and private agencies at the local level with the
intent to establish a "one stop" job placement center.

While the Respondent does not dispute the Commission's jurisdiction over the
subject matter of the complaint, it contends that it is not properly named as
the Respondent. The Complainant asserts that the Respondent is a proper party.
This jurisdictional dispute was transferred to the Hearing Examiner for
resolution.

The parties were given the opportunity to provide additional information in
support of their respective positions. Based upon the materials provided to the
Investigator/Conciliator and to the Hearing Examiner, the Hearing Examiner
concludes that the Respondent is not properly named.

DECISION

The Respondent makes two arguments in support of its contention that it
should not be named as a Respondent. First, it asserts that the position for
which the Complainant applied was funded entirely by a grant from the federal
government passed through the DWD. As such, the Respondent asserts that it would
have no funds to pay a judgement because the funding was entirely controlled by
the granting authorities.

The Hearing Examiner is entirely unpersuaded by this argument. If the Hearing
Examiner were to accept this position, the Commission would never be able to
accept a complaint against any not-for-profit organization that relies upon
grants for its funding source. While it is true that such organizations may face
extreme financial consequences in the event of a determination of
discrimination, that is an unfortunate consequence of their limited funding
base. It is not a basis for relieving them of their responsibilities not to
discriminate against members of the various protected classes named in the
ordinance.

Nothing in the ordinance indicates an intention to excuse a recipient of
grants from liability under the ordinance. In fact, Section 3.23(7)(a) of the
ordinance does not limit its coverage strictly to employers. It states that it
shall be illegal for any person or employer to . . . discriminate . . .
(emphasis added). Section 3.23(2)(a) defines "person" broadly to
include association. The Respondent is clearly an association and nothing in
that section limits coverage of the ordinance to for profit associations.

The second argument raised by the Respondent is more persuasive however. The
Respondent asserts that it is only the financial agent for the LCPT and its
functions are strictly ministerial and limited to essentially bookkeeping
functions. It asserts that it did not control the hiring process, make the
hiring decision and has no management authority over the position of Project
Coordinator. The record seems to bear this out.

The position description/notice of vacancy indicates that resumes should be
sent to the employer. That form lists the DWD as the employer. Resumes were
reviewed by a committee consisting of Mary Witt, Dane County Job Service; Mary
Ann Cook, Dane County Human Services and Jim Erlenborn, Employment &
Training Association. Interviews were conducted by a committee consisting of
Dale Hopkins, Dane County Private Industry Council; Mary Pasholk, Dane County
Job Service; Dan Kittel, Dane County Human Resources and Jim Erlenborn,
Employment & Training Association. It should be noted that Kittel did not
participate in the Complainant's interview because of the potential for a
conflict of interest between his employer and the Complainant. While Jim
Erlenborn participated in this process as a member of the committees, the
process is not consistent with a position solely or primarily under the control
of the Respondent.

The organizational documents including bylaws indicate that the Project
Coordinator would be supervised on a day to day basis by the Chairperson
designee of the LCPT. Personnel matters relating to the position were to be
handled by a subcommittee of the LCPT. Again, this indicates that the
Respondent, though a fiscal agent, was not in a position to affect or to
discriminate against the Complainant in hiring or any of the usual areas of
concern such as terms and conditions, privileges and benefits of employment.

The one item in the record that creates concern for the Hearing
Examiner is a memorandum dated July 25, 1997, from Mary Pasholk. The memorandum
purports to describe the hiring process for the Project Coordinator. That
documents indicates that the Employment & Training Association was
designated to be the "employer of record." This contradicts the other
documents in the file including the job announcement. It is not clear on this
record what is meant by the term "employer of record."

Despite this one statement, the weight of the evidence in the record
indicates that the Respondent did not exercise the type of control or authority
over the position for which the Complainant applied such that it can be
considered the employer for purposes of the ordinance.

Section 3.23(7)(a) also prohibits discrimination "by any person."
Section 3.23(2)(a) defines person to include an association. Clearly the
Respondent is a person as that term is contemplated by the ordinance. The
question is whether the Respondent is a person who could discriminate against
the Complainant in a manner prohibited by the ordinance. For the reasons stated
above, the Hearing Examiner concludes that it is not. The Respondent did not
have the authority to make a hiring decision and it clearly would not have had
any direct authority over the Project Coordinator's daily work or conditions.
The record indicates that the Respondent, though a person within the meaning of
the ordinance, falls outside of the intended coverage of the ordinance with
respect to this complaint.

The Complainant asserts that the Commission has jurisdiction because the
advertisement that she responded to had been placed by the Respondent. She also
asserts that the Respondent was somehow in charge of the position. This latter
contention goes as mere speculation on the part of the Complainant.

These points are not sufficient to overcome the remaining material in the
record. Taken as a whole, the record supports the Respondent's position that it
is not a proper party.

Despite the fact that the Respondent must be dismissed, the Hearing Examiner
does not believe that it would be appropriate to dismiss the complaint without
permitting the Complainant the opportunity to amend her complaint to properly
name a new Respondent. This is particularly true in light of the Respondent's
statements that it does not contest the Commission's general jurisdiction over
the complaint.

The record is not clear about the Commission's jurisdiction over other
possible parties. On this record, it appears that there could be jurisdiction
over the LCPT because it is a private/public entity. However, it also seems to
be consistent with an arm of a governmental unit over which the Commission would
not have jurisdiction. While such jurisdictional conjectures may be interesting,
they need only need be resolved in the event that the Complainant decides to
amend her complaint.

ORDER

The Hearing Examiner will hold the complaint in abeyance for fifteen (15)
days from the date of receipt of this decision and order. The Respondent will be
dismissed from the complaint either once the complaint is amended to add a new
Respondent or at the end of the fifteen (15) day period, whichever is earlier.
This Decision and Order may be appealed pursuant to the accompanying Notice of
Right to Appeal.